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Judgment
A. Badharudeen, J.
This Crl.M.C. has been filed by the sole accused in Crime No. 1000/2023 of Karunagappally Police Station, where the prosecution alleges commission of offences under Section 406 and 420 of the Indian Penal Code (hereinafter referred to as “the IPC”). The prayers in this Crl.M.C. are as under:
“For these and other grounds that may be urged at the time of hearing it is most respectfully prayed that this Hon'ble Court may be pleased to quash the Annxure-1 F.I.S and Annexure-2 F.I.R in crime no.1000 of 2023 of Karunagapally police station and all further proceedings pursuant to the same.”
Heard the learned counsel for the petitioner, the learned counsel appearing for the 2nd respondent and the learned Public Prosecutor, appearing for the 1st respondent/State of Kerala. Perused the available records and relevant decisions.
It is submitted by the learned counsel for the petitioner that, in fact, originally, the elephant in dispute was handed over to the petitioner by one Sadhanandan, as per Annexure A3, along with the original documents, who, in fact, got custody of the same in 2017 as per Annexure A4 document. Since then, the elephant has been in the ownership and possession of the petitioner.
According to him, going through Annexure A1 complaint, which led to the registration of Annexure A2 FIR, prima facie, none of the offences could be found and, therefore, the registration of Annexure A2 FIR, and further steps thereof are abuse of the process of the Court. As such, the FIR is liable to be quashed.
The grounds urged in the Crl.M.C., starting from ‘B’ to ‘J’, have been reiterated by the learned counsel for the petitioner, which read as under:
“B. Even if the allegations made in the F.I.S and F.I.R are taken at their face value and accepted in their entirety it do not prima facie constitute any offence or make out a case against the accused justifying investigation by police officers.
C. The essential ingredients of the alleged offences, under sections 406 and 420 of IPC, is not present in the F.I.S and F.I.R and the uncontroverted allegations therein do not disclose commission of any offence by the petitioner.
D. It is trite law that the offence of cheating and breach of trust are mutually exclusive offences and both the offences cannot co-exist simultaneously. Although both the offences involve dishonest intention they are different in basic concept. The Hon'ble Supreme Court of India in Delhi Race Club (1940) Ltd and others Vs State of Uttar Pradesh and Another reported in (2024) 10SCC690 has reiterated this position of law. In this context the following observations in the judgment in para 54 and 55 of the above judgment is extracted hereunder for easy reference:
“54..................In contrast, when a case arises from an FIR, this responsibility is of the police to thoroughly ascertain whether the allegations levelled by the informant indeed fall under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.
55.It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating vis-a-vis criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of IPC (now BNS, 2023) are not twins that they cannot survive without each other." The above dictum is squarely applicable to the facts of the case.
E. The allegations made by the informant lack the legal foundation to support claims of cheating and breach of trust, whether considered jointly or independently.
F. To attract the offence of cheating as defined under section 415 and punishable under section 420 of IPC, it is necessary that the F.I.R should make out a case of intentional inducement, dishonesty or fraudulence. It is submitted that neither the complaint nor the F.I.R make out a case of any inducement, fraud or dishonesty on the part of the petitioner.
G. The key ingredient of cheating is the existence of fraudulent or dishonest intention right at the beginning of the transaction. It is also settled by judicial pronouncements that breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and merely allegation of failure to keep up promise will not be enough to initiate criminal proceedings. The specific allegation made in the complaint is that as the elephant was in musth it was entrusted to the petitioner for some time as he was owning many elephants and had ample land to look after the elephant. The further allegation is that when the informant sought the return of the elephant though the petitioner promised to return the elephant after the festival season he failed to keep up the promise and did not return the elephant. The nature of allegation being such it is clear the allegations do not disclose the essential ingredients of cheating alleged against the petitioner. There is no allegation that any person deceived the informant and fraudulently and dishonestly induced him to deliver the property whereas the allegation made is that in order to protect his interest on his own volition the elephant was given to the petitioner .The fact being so the offence of cheating will not be attracted in this case. In Rekha Jain v. State of Karnataka and Another AIR 2020 SC 2268, the Honorable Supreme Court has held that, "In the absence of any allegation of inducement by accused, accused cannot be prosecuted for the offence under S.420. There must be a dishonest intention by the accused."
H. The essential ingredients to attract an offence under section 406 of IPC are the entrustment of property to the accused, the accused doing the act with the dishonest intention to cause wrongful loss or gain, the accused misappropriating, converting or disposing of property in a manner that is not authorized by trust. By no stretch of imagination, the above ingredients are made out in this case
I. If it is assumed that the elephant is a property, in this case the petitioner obtained the custody of the property by a deed of gift. In a transaction of gift the property in goods passes to the donee from the donor once the property is delivered and accepted. When property in goods has passed to the petitioner there is no question of any entrustment of property. Hence the prosecution on the charges of criminal breach of trust is flawed to the core.
J. The gift deeds produced as Annexure-3 and 4 clearly and categorically establishes the claim of the informant that the property was entrusted to the petitioner is nothing but a totally false and baseless allegation.”
The learned Public Prosecutor filed a report submitted by the Sub Inspector of Police, Karunagappally Police Station. In the report, the matters revealed during investigation have been narrated in detail in paragraph Nos.1, 3 and 4, as under:
“1.During the investigation, it was revealed that one Sadanandan K.V., aged 72, son of Velayudhan, residing at Kollarayil house in Thrissur Taluk, Thrissur District, had donated the elephant named Raman to Mata Amritanandamayi Math in 1999 when it was 1.5 years old. The elephant remained at the Math until it was 18 years old. When the elephant developed musth at that age and caused fear among devotees visiting the Math, the Math authorities requested Sadanandan to take the elephant back. Accordingly, Sadanandan, along with his relative Krishnankutty, came to the Ashram and handed over the elephant to Krishnankutty for care and treatment. It was found that the elephant is presently in the custody of Krishnankutty. Though he had promised to return the elephant in 2022, he failed to do so.
3.As per the order of the Honorable Judicial First Class Magistrate Court, Karunagappally, the elephant Raman, located at the property of Krishnankutty (son of Pushpangadan) at Ultolyil house, Amballoor, Pudukkad P.O., in Alagappa Nagar Panchayat, Thrissur District, was identified and taken into custody in the presence of Assistant Forest Veterinary Officer Ashokan and Section Forest Officer Premnath, and documented through a mahazar.
4.When requested to issue a fitness certificate to transport the elephant to Kollam, Assistant Forest Veterinary Officer Ashokan informed that due to the elephant being in musth, it was not possible to transport it safely by vehicle or any other means, and hence he could not issue a fitness certificate. Therefore, as it was not possible to safely transport the elephant to Kollam, and since the elephant cannot be transferred without court orders, temporary custody of the elephant was entrusted to Krishnankutty under conditions specified in a bond (kachit).”
The learned counsel for the defacto complainant/2nd respondent raised contentions in tune with the written counter affidavit filed by the 2nd respondent. The following grounds have been urged to defeat the prayers in the Crl.M.C:
“1.I am the 2nd respondent in the above Crl. M.C. and the De-facto complainant in Crime No. 1000/2023 of the Karunagappally Police Station, Kollam district. I am filing this counter affidavit in answer to the contentions raised in the affidavit filed by the Petitioner in compliance with the directions contained in the Order dated 09.09.2025 of this Hon'ble court in this Crl.M.C.
2.When this matter came up for consideration before this Hon'ble Court on 09.09.2025, this Hon'ble Court was enlightened by the Respondent that the Petitioner had filed another Crl.M.C No. 4989/2024 before this Hon'ble Court for quashing the very same Crime No. 1000/2023 of Karunagappally Police Station and suppressing that material fact the present Crl.M.C. was filed. Therefore this Hon'ble Court had directed the Petitioner to get specific instructions as to why proceedings should not be initiated against him for deceiving this Hon'ble Court by filing the present Crl.M.C.
3.Accordingly the Petitioner had filed an affidavit dated 21.09.2025 on 23.09.2025 seeking apology and explaining about the filing of the 2nd Crl.M.C., while 1st Crl.M.C. was pending. This affidavit is filed to rebut the Petitioner's submissions contained in his affidavit dated 21.09.2025, and to establish that the Petitioner is engaged in a calculated abuse of the judicial process, thereby demonstrating a pattern of fraud on differentcourts which disentitles him to any equitable or discretionary relief from this Hon'ble Court as he has approached this Hon'ble Court with unclean hands.
4.It is humbly submitted that the petitioner's assertion that the filing of 1st Crl. M.C. No. 4989/2024 and 2nd Crl. M.C. 6502/2025 for the very same relief is due to an honest mistake or "lapse in enquiring properly following up and ascertaining about the matter" is untenable and disingenuous.
5.Such simultaneous pursuit of identical remedies before the same judicial forum constitutes an aggravated form of forum shopping, which is to be discouraged in the interest of justice and upholding the Majesty of Court. The Petitioner admits that the earlier Crl. M.C. (No. 4989 of 2024) was filed in June 2024, and the present Crl. M.C. was filed in 2025, with full knowledge that "filing the same case again under the same provision with the same prayer before the same High Court and Bench, with different advocates but the same respondents, is illogical and without any apparent benefits".
6.But this deliberate duplication burdens this Hon'ble Court and is a conscious strategy to harass the Respondent herein through another Counsel, rather than an "inadvertent" oversight by the Petitioner as an experiment to get an interim order of stay, which couldn't be obtained in the 1st Crl.M.C. The current affidavit, rather than mitigating the misconduct, compounds the Petitioner's dishonesty by offering a specious excuse for a blatant violation of judicial procedure.
11.This Hon'ble Court in F.A.O. No. 102 of 2024, explicitly warned that when a person approaches the Court with unclean hands, suppressing material facts, it is well settled position of law that "he should summarily be thrown out of the Court without granting any relief".
12.In S.P. Chengalvaraya Naidu v. Jagannath (1994 SCC (1) 1), it was held that a litigant who plays fraud on the court "has no right to approach the court and can be summarily thrown out at any stage of the litigation".
13.In Prestige Lights Ltd. v.State Bank of India ((2007) 8 SCC 449), it was stressed that where there is suppression of material facts, "the Court may refuse to entertain the petition and dismiss it without entering into the merits of the matter".
14.In Vishnu Vardhan @ Vishnu Pradhan v. State of Uttar Pradesh (2025 KHC 6630), the Court confirmed that judicial orders procured by subverting the judicial process through fraud "cannot be permitted to stand as fraud unravels everything" and "when the court has been the victim of fraud, it's hands cannot be tied down by procedural laws in a manner to defeat the interests and rights of other parties".
15.It is humbly submitted that in NidhiKaim and Another v. State of Madhya Pradesh and Others (2017 KHC 6121) firmly states, "Even the trivialist act of wrong doing, based on a singular act of fraud, cannot be countenanced, in the name of justice".
16.The Petitioner, whose fraud has already been judicially exposed in Ext.R2(a), falls squarely within the ambit of the above strictures.
17.It is humbly submitted that the petitioner has been established as a dishonest litigant whose mala fide intentions have been conclusively proven, the Petitioner must face the consequence of his actions. This Crl.M.Cs filed are mere extension of his attempt to obtain undue advantage by playing fraud on Court and therefore must be dismissed to maintain the sanctity and integrity of the judicial process. In the light of the foregoing submissions and the judicial record demonstrating the Petitioner's persistent mala fides and fraudulent conduct, it is most respectfully prayed that this Hon'ble Court may be pleased to reject the vague explanation tendered by the Petitioner for the duplicity of filings and dismiss Crl.M.C. No. 6502 of 2025& in Crl.M.C. No. 4989 of 2024 in limine with exemplary, punitive and compensatory costs, as the continued litigation by the Petitioner constitutes an aggravated abuse of the process of this Hon'ble Court and pass such other orders as this Hon'ble Court may deem fit and proper in the interests of justice.”
Coming to the contentions raised by the learned counsel for the petitioner to quash the FIR, according to him, none of the offences alleged in the FIR, viz., offences under Sections 406 and 420 of the IPC, would sustain prima facie, since the petitioner got title and custody of the elephant in dispute, in view of Annexure A3, a document executed by the owner, Sri.Sadanandan, in his favour, who had ownership over the elephant. It is also submitted that Sadanandan got title over the elephant as per Annexure A4, a document executed by the 2nd respondent in favour of Sadanandan. Thus, when Annexures A3 and A4 are read together, the allegations in the FIR have no legs to stand.
Repelling this contention, the case advanced by the learned counsel for the 2nd respondent is that the petitioner is at fault mainly on two grounds. The first ground urged is that, before filing this Crl.M.C., the same petitioner had filed another Crl.M.C.No.4989 of 2024 before this Court seeking the same relief. During the pendency of Crl.M.C.No.4989 of 2024, this Crl.M.C. had been filed through another counsel. When this fact was brought to the notice of the then learned Single Judge of this Court, both Crl.M.Cs. were posted together. At this juncture, the earlier Crl.M.C., viz., Crl.M.C.No.4989 of 2024, was withdrawn without any liberty to proceed with the present Crl.M.C., and therefore the present Crl.M.C. is not maintainable.
In this regard, it is submitted by the learned counsel for the petitioner that the petitioner lost sight of the filing of the earlier Crl.M.C.No.4989 of 2024 and, accordingly, he had mistakenly filed the present Crl.M.C. According to the learned counsel for the petitioner, if the petitioner had continued with the earlier Crl.M.C. after not pressing or withdrawing the present one, this contention should not have been raised.
Here, admittedly, the petitioner earlier filed Crl.M.C.No.4989 of 2024 and, during the pendency of the same, the present Crl.M.C. was also filed seeking the same relief. When the pendency of the two Crl.M.Cs. was brought to his notice, he had withdrew the earlier Crl.M.C.No.4989 of 2024. But no permission was obtained to continue with the present crime. Thus, the situation is that the grievance of the petitioner was not addressed in the earlier Crl.M.C., which was withdrawn during the pendency of the present Crl.M.C. No doubt, mere technicalities would not stand in the way of denying a relief, if the petitioner is really entitled to the same, so as to protect the rule of law in the interest of justice. In this connection, it is relevant to note that, when a constitutional court takes a view to non-suit a litigant on finding that he had filed frivolous litigation on earlier occasions, the same is akin, to putting the said litigant to multiple hazards by initiating vexatious litigation and thereby denying him a remedy to get out of vexatious litigations. Therefore, in such cases, a practical approach in the paramount interest of justice has to be considered. In such view of the matter, this contention raised by the 2nd respondent is found against.
It is pointed out by the learned counsel for the 2nd respondent that when the magistrate court issued an order to hand over the elephant to the 2nd respondent, suppressing the same, the petitioner filed a civil suit before the vacation court and obtained an interim injunction, and subsequently this Court set aside the same for suppression of material facts. It is also noticeable, as submitted by the learned counsel for the 2nd respondent, that in a contempt proceeding, the petitioner was imposed a fine by the Hon’ble Apex Court also.
However, the question that arises for consideration is; whether these are matters to non-suit the petitioner without addressing the case advanced by him, which was never decided by this Court in any proceedings. Therefore, this Court is inclined to dispel this challenge raised by the 2nd respondent.
Coming to the merit of the matter, on perusal of the complaint filed by the 2nd respondent before the Karunagapally Police, which led to the registration of the present FIR, it is perceivable that, during February 2007, the elephant by name ‘Raman’ was entrusted to the petitioner by one Sadananthan, who gave the elephant to the Mata Amritanandamayi Math. Further, it is stated that ‘Raman’ was also entrusted to the accused, as he had other elephants, during the period of musth. But, thereafter, when the return of the elephant was asked for, he agreed to return the same before 15th May 2023, but he failed to return the elephant. This is the premise on which the FIR was registered, alleging commission of offences under Sections 406 and 420 of the IPC. At the outset, while going through the allegations, offences under section 420, cheating, and Section 406, criminal breach of trust, are simultaneously alleged to be committed by the petitioner, through the said offences are fundamentally contradictory and cannot co-exist or go together based on the exact same set of allegations or a single transaction. Ignoring the said fundamental principle, the police registered the FIR alleging commission of the said offences together by the petitioner herein. This legal position has been reiterated by the Apex Court in a very recent decision in Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another [(2024) 10 SCC 690].
At this juncture, the learned counsel for the 2nd respondent submitted that, in the instant case, the offence under Section 420 of the IPC would not attract prima facie, but the offence under Section 406 of the IPC would attract. In this connection, it is relevant to refer to the ingredients of the offence under Section 406 of IPC. Section 406 of the IPC is extracted as hereunder:
“406. Punishment for criminal breach of trust.—
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
The ingredients is defined as follows:
(a)Essential Ingredients.—The section requires— (i) Entrusting any person with property or with any dominion over property; (ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust.
……………. the ingredients of entrustment with property, having domain over it, and the same having been misappropriated or converted to his own use by the accused person, are required to be proved. Where in prosecution for the offence under sections 406 and 120-B IPC, the evidence did not prove the guilt of the accused beyond doubt, the accused was acquitted.”
“The criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. Sudhir Shantilal Mahta v. C.B.I., (2009) 8 SCC 1 : (2009) 3 SCC (Crl) 646. To constitute this offence, there must be dishonest misappropriation by a person in whom, confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person, other than the accused and the latter must hold it on account of some person or in some way for his benefit. C M Narayan, AIR 1953 SC 478 : 1954 CrLJ 102. The offence of criminal breach of trust closely resembles the offence of embezzlement under the English law. Offences committed by trustees with regard to trust property fall within the purview of this section.”
Here is a case wherein the specific case of the petitioner is that, by executing Annexure A3 agreement, he got title and custody of the elephant. Annexure A3 is the document alleged to have been executed between K.V.Sadanandan and Krishnankutty O.P. (the petitioner herein). In Annexure A3, it has been recited that the elephant by name Madhu, originally in the ownership and custody of Sadanandan, was entrusted by him to the Mata Amritanandamayi Math as a gift and, accordingly, the Math got ownership over the same and renamed the elephant as ‘Raman’. It is recited in Annexure A3 further that, since Raman had been in musth periodically and the same found to have a direct impact on the safety and security of the believers of Mata Amritanandamayi Math, it was decided to gift the elephant back to Sadanandan. Accordingly, the Mata Amritanandamayi Math, by executing a document (Annexure A4), dated 18.02.2017, gifted the elephant back to Sadanandan. Annexure A3 goes on to state further that thus Sadanandan, as the owner of the elephant, gifted the elephant to Krishnankutty, who is none other than the petitioner herein. Annexure A4 produced in this case is document referred to in Annexure A3 dated 18.02.2017. Annexure A4 would show that, in a stamp paper purchased in the name of Mata Amritanandamayi Math, the Math gifted back the elephant to Sadanandan for the very same reason stated in Annexure A3. One Swami representing Mata Amritanandamayi Math signed in Annexure A4 with the seal of Math.
According to the 2nd respondent, they are disputing Annexures A3 and A4. When one party asserts title over the elephant based on two documents showing gifting of the same, the ownership based on the said documents, if disputed, the same is a matter to be decided by a competent civil court. In such a case, on no stretch of imagination it could be said that an offence under Section 406 of the IPC be found prima facie. The rationale is that the very fundamental necessity to constitute an offence punishable under Section 406 of the IPC is entrustment of property by a person having domain over it. The word ‘domain’ literally means ‘a sphere of control’ or ‘an authority’. Simply put, a person who has parted with his title and possession of a property seized to be having any domain or authority or control over the property. Here, the petitioner claims absolute title on the elephant in question, whereas the 2nd respondent has no right unless he could establish before a competent civil court that he did not execute Annexure A4, which led to the execution of Annexure A3, the title document of the petitioner. Be it so, the FIR sought to be quashed in this case is liable to be quashed for want of even primary materials disclosing offences punishable under Section 406 of the IPC or Section 420 of the IPC.
In view of the above discussion, this Crl.M.C. is allowed. The FIR in Crime No.1000 of 2023 of Karunagapally Police Station and all further proceedings thereafter stand quashed.